B-140785, OCT. 19, 1959

B-140785: Oct 19, 1959

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YOU WERE REASSIGNED. THE LATTER SALARY WAS BASED ON A NEW IN-HIRINGRATE ESTABLISHED BY CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 793. THERE WAS A TITLE CHANGE OF THE POSITION YOU OCCUPIED FROM AERONAUTICAL POWER PLANT RESEARCH ENGINEER. THAT ACTION WAS DIRECTED BY THE CHIEF OF INDUSTRIAL RELATIONS AFTER CONSIDERING A CLASSIFICATION APPEAL SUBMITTED BY YOU TO THE CHIEF. WHEREIN YOU CONTENDED THAT THE POSITION DESCRIPTION OF THE POSITION TO WHICH YOU WERE ASSIGNED JUSTIFIED CLASSIFICATION GRADE GS-13. AS A RESULT OF THAT APPEAL YOUR POSITION WAS REALLOCATED IN ACCORDANCE WITH THE COMMISSION'S LETTER OF APRIL 1. YOU WERE PROMOTED FROM GRADE GS-12. YOU CONTEND THAT YOU WERE DOWNGRADED BECAUSE OF THE ACTION OF THE ADMINISTRATIVE OFFICE IN NOT CLASSIFYING YOUR POSITION IN GRADE GS-13 FROM THE OUTSET AND AS A RESULT YOU FEEL THAT YOU ARE ENTITLED TO RETROACTIVE PAYMENT OF THE SALARY WHICH YOU ALLEGE YOU EARNED BUT WAS DENIED BECAUSE OF AN ADMINISTRATIVE ERROR.

B-140785, OCT. 19, 1959

TO MR. VERNON L. HAYNES:

YOUR UNDATED REGISTERED LETTER NO. 275960, RECEIVED HERE SEPTEMBER 8, 1959, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF JULY 16, 1959, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE PAYMENT OF SALARY ALLEGEDLY EARNED WHILE PERFORMING GRADE GS-13 DUTIES, AND CORRECTION OF PRESENT GRADE GS-13 SALARY RATE TO TOP OF GRADE, AS AN EMPLOYEE OF DEPARTMENT OF THE NAVY.

THE RECORD SHOWS THAT AS A RESULT OF A DIVISION REORGANIZATION AND A REDESCRIPTION OF A PREVIOUSLY ALLOCATED GS-12 POSITION, PP-25564, YOU WERE REASSIGNED, EFFECTIVE AUGUST 25, 1957, FROM AERONAUTICAL GAS TURBINE POWER PLANT, DEVELOPMENT ENGINEER, GS-834-12, $8,430 PER ANNUM, TO AERONAUTICAL POWER PLANT RESEARCH ENGINEER, GS-834-12, $8,645 PER ANNUM. THE LATTER SALARY WAS BASED ON A NEW IN-HIRINGRATE ESTABLISHED BY CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 793, SUPPLEMENT 15, DATED AUGUST 10, 1956.

EFFECTIVE SEPTEMBER 7, 1958, THERE WAS A TITLE CHANGE OF THE POSITION YOU OCCUPIED FROM AERONAUTICAL POWER PLANT RESEARCH ENGINEER, GS-834-12, $9,530 PER ANNUM TO AERONAUTICAL GAS TURBINE POWER PLANT DEVELOPMENT ENGINEER, GS-834-12, $9,530 PER ANNUM. THAT ACTION WAS DIRECTED BY THE CHIEF OF INDUSTRIAL RELATIONS AFTER CONSIDERING A CLASSIFICATION APPEAL SUBMITTED BY YOU TO THE CHIEF, BUREAU OF AERONAUTICS, WHEREIN YOU CONTENDED THAT THE POSITION DESCRIPTION OF THE POSITION TO WHICH YOU WERE ASSIGNED JUSTIFIED CLASSIFICATION GRADE GS-13.

YOU THEN SUBMITTED A CLASSIFICATION APPEAL TO THE CIVIL SERVICE COMMISSION. AS A RESULT OF THAT APPEAL YOUR POSITION WAS REALLOCATED IN ACCORDANCE WITH THE COMMISSION'S LETTER OF APRIL 1, 1959, AND EFFECTIVE APRIL 19, 1959, YOU WERE PROMOTED FROM GRADE GS-12, $9,530 PER ANNUM TO GRADE GS-13, $10,130 PER ANNUM, WITH NO CHANGE IN POSITION TITLE OR NUMBER.

YOU CONTEND THAT YOU WERE DOWNGRADED BECAUSE OF THE ACTION OF THE ADMINISTRATIVE OFFICE IN NOT CLASSIFYING YOUR POSITION IN GRADE GS-13 FROM THE OUTSET AND AS A RESULT YOU FEEL THAT YOU ARE ENTITLED TO RETROACTIVE PAYMENT OF THE SALARY WHICH YOU ALLEGE YOU EARNED BUT WAS DENIED BECAUSE OF AN ADMINISTRATIVE ERROR. YOU ALSO REQUEST THAT YOUR PRESENT SALARY IN GRADE GS-13 BE CORRECTED TO THE TOP OF THE GRADE WHICH YOU ALLEGE YOU WOULD HAVE RECEIVED HAD THE POSITION BEEN CLASSIFIED PROPERLY AT THE OUTSET, OR HAD THE ORIGINAL APPEAL BEEN MORE PROMPTLY AND PROPERLY ADJUDICATED.

THERE IS NOTHING IN THE FILE TO SHOW THAT THE POSITION YOU HELD WAS DOWNGRADED ILLEGALLY OR OTHERWISE. YOUR CASE INVOLVES THE INITIAL ADMINISTRATIVE CLASSIFICATION OF THE POSITION. AS INDICATED IN OUR SETTLEMENT OF JULY 16, 1959, THE MATTER OF DETERMINING THE PROPER ALLOCATION OF POSITION IN THE DEPARTMENTAL SERVICE IS VESTED IN THE ADMINISTRATIVE OFFICE CONCERNED, SUBJECT TO REVIEW BY THE CIVIL SERVICE COMMISSION. SEE SECTION 502 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954 (5 U.S.C. 1105). THAT SECTION SPECIFICALLY SAYS THAT THE CLASSIFICATION ACTIONS OF THE DEPARTMENTS "SHALL BE THE BASIS FOR THE PAYMENT OF COMPENSATION AND FOR PERSONNEL TRANSACTIONS UNTIL CHANGED BY CERTIFICATE OF THE COMMISSION.' THEREFORE, THE GENERAL RULE IS THAT WHEN A POSITION HAS BEEN RECLASSIFIED TO A HIGHER GRADE AS THE RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION, THERE IS NO AUTHORITY TO MAKE THE SALARY RATE RETROACTIVELY EFFECTIVE. THE EFFECTIVE DATE OF THE SALARY CHANGE IS GOVERNED BY CHAPTER P2-20 OF THE FEDERAL PERSONNEL MANUAL REFERRED TO IN OUR SETTLEMENT OF JULY 16, 1959, AND CHAPTER P2-23, 5 CFR 36.1 (C). AS INDICATED ABOVE, HOWEVER, THE RETROACTIVE PROVISION THEREIN COVERING DOWNGRADING ACTIONS WHEN AN APPEAL IS TAKEN WITHIN THE PRESCRIBED PERIOD IS NOT APPLICABLE TO YOUR CASE. THE POSITION IN QUESTION WAS AT NO TIME CLASSIFIED BY PROPER AUTHORITY IN GRADE GS-13 PRIOR TO THE COMMISSION'S ACTION ON YOUR APPEAL. THERE IS NO EVIDENCE OF RECORD THAT THE CLASSIFICATION ACTION ORIGINALLY TAKEN IN YOUR CASE WAS OTHER THAN A BONA FIDE ACTION TAKEN UNDER THE AUTHORITY CONFERRED UPON YOUR AGENCY. MOREOVER, ONE WHO HOLDS A FEDERAL POSITION IS ENTITLED TO NO MORE THAN THE SALARY PRESCRIBED FOR THE POSITION OR OFFICE TO WHICH HE WAS APPOINTED REGARDLESS OF WHETHER HE PERFORMS THE DUTIES OF AN OFFICE OF HIGHER GRADE. SEE GEORGE L. COLEMAN V. THE UNITED STATES, 100 C.CLS. 41, AND CASES THERE CITED.

CONSEQUENTLY, WE HAVE NO ALTERNATIVE OTHER THAN TO CONCLUDE THAT THE SETTLEMENT OF JULY 16, 1959, DISALLOWING YOUR CLAIM WAS CORRECT AND MUST BE AND IS SUSTAINED.